| C. The U Visa and Children |
| INA § 101(a)(15)(i)(II) |
There are several provisions
specifically related to children under 16, 18, or 21 years old.
First, there are two exceptions where the victim of the crime is a child under 16 years old. The second element listed above (requiring that the victim possess information concerning the criminal activity) provides an exception where the victim is a child under the age of 16. In that case the element is met despite the child not possessing information regarding the criminal activity as long as the parent, guardian, or next friend possesses such information. |
| INA § 101(a)(15)(i)(III) |
Similarly, element three above
(requiring that the applicant has been, is being, or is likely to be helpful to
authorities in the investigation or prosecution of the criminal activity)
provides an exception where the child (under the age of 16) has a parent,
guardian, or next friend who satisfies the helpfulness requirement.
|
| 8 CFR 214.14(a)(14)(i) | Second, the regulations have an expansive view of who will be considered a victim for purposes of filing for U nonimmigrant relief as a principal. A child of the direct victim who is under 21 or an unmarried sibling of the direct victim who is under 18 will be considered a victim, though not a direct victim, of the criminal activity where the direct victim is deceased due to murder or manslaughter, or where the direct victim is incompetent or incapacitated and therefore unable to be helpful. |
| Id. | Furthermore, a parent of a child under 21 may also be considered a victim, though not the direct victim. The child’s age for purposes of the age requirement is the age when the criminal activity occurred. |
| 8 CFR 214.14(a)(14)(ii) | Additionally, the regulations establish that in cases of witness tampering, obstruction of justice, or perjury, indirect victims will be considered victims where the non-citizen has been directly and proximately harmed and there are reasonable grounds to conclude that the offense was principally perpetrated as a means: 1) to avoid or frustrate efforts to investigate, arrest, prosecute or bring him or her to justice for other criminal activity, or 2) to further abuse, exploitation, or undue control over the non-citizen through use of the legal system. |
| 8 CFR 214.14(a)(2) |
Third, the regulations recognize that
the agencies that are authorized to certify a non-citizen’s helpfulness in an
investigation should be expansive. The
regulations provide that in addition to traditional law enforcement agencies,
other agencies, including child protective services, have criminal jurisdiction
in certain areas and are authorized to certify an applicant’s helpfulness.
Because in practice obtaining a certification from law enforcement can be a frustrating process due to a lack of understanding, willingness, and/or training of the certifying agency, it is important to identify all potential certifying agencies and to exhaust all possibilities. |
| INA § 101(a)(15)(U)(ii)
INA § 101(a)(15)(U)(ii)(II) 8 CFR 214.14(f) |
Finally, a child, sibling, or parent
may be included as a derivative of a U visa application where that individual
is not considered a victim of the criminal activity.
Where the principal applicant is under 21 years of age, the principal’s children, unmarried siblings under 18 years of age (age as of the filing date of the petition), and parents may be included as derivatives on the principal application. Where the principal applicant is 21 years of age or older, the applicant’s spouse and children may be included as derivatives on the application. |